1709997 (Refugee)

[2021] AATA 2174

1709997 (Refugee) [2021] AATA 2174 (23 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709997

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Damian Creedon

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 March 2021 at 11:30 am (WA time)

DATE OF WRITTEN RECORD:                7 June 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 7 June 2021 at 3:42pm

CATCHWORDS

REFUGEE – protection visa – Turkey –race – Kurdish – imputed political opinion – anti-government – pro-Kurdish separatism/autonomy/independence – conscientious objection to military service­ –worsening general security and human rights situation – decision under review remitted  

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 April 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 23 March 2021 the Tribunal made an oral decision. The following is the written record of the reasons.

   STATEMENT OF REASONS

3. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

4. The applicant, a citizen of Turkey, first arrived in Australia [in] October 2015 holding a Student [visa].  He applied for a protection visa on 4 November 2015 and was granted a Bridging visa on 13 November 2015 which is still current.

   Protection visa application

5. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

6. The applicant applied for a review of the delegate’s decision.

   Application for review

7. The applicant appeared before the Tribunal on 23 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.  The applicant was represented in relation to the review by his registered migration agent.

8. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The relevant law

9. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

10. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

11. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

12. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in s.5J(2)–(6) and ss.5K–5LA, which are extracted in the attachment to this decision.

13. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in s.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

14. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis reasons and findings

15. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

16. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

17. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

18. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

    Documents

19. The applicant provided a number of pieces of documentary evidence to the Tribunal prior to his hearing.  In particular, the Tribunal has read and had regard to the following material:

    a.A document dated [in] October 2015 issued by the Department of Defence, Military Conscription Office, deferring the applicant’s “Mandatory Military Service Commencement” until [December] 2016.

    b.An “Indictment” dated [in] November 2016 prepared by the [City 1] Chief Prosecutor’s Office addressed to the [City 1] Criminal Court, naming the applicant as accused.  The indictment states the following particulars:

    Upon examining the results of investigations carried out by [City 1] Counter Terrorism Teams and the documents seized during operations conducted towards the [City 1] structure of separatist, armed PKK organization, it has been understood beyond doubt that the accused, [the applicant] is an active member of the organization's youth wing, has participated in the demonstrations and rallies, thrown Molotov cocktails and damaged public property as a result of these activities.

    c.A letter dated 23 November 2016 from [a] Medical Centre under the  hand of [a named doctor] which states, inter alia (uncorrected):

    I am writing this letter to inform you that [the applicant], who is a [age] year old man of Kurdish background. He has been a patient of this practice for the past 2 years and has been treated for depression.  Currently he is on 2 anti-depressants and counselling to keep him in a health state of mind.  He has fears of maltreatment and prosecution of the Turkish authorities with persistance as a result of serving in the turkish army for 15 months, which is challenging his identity and background

    Applicant’s evidence

20. At hearing the applicant gave oral evidence about his background, the reasons he left Turkey and his adverse experiences there, his activities in Australia, and his fears at the prospect of returning to Turkey now or in the reasonably foreseeable future.  In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully. 

21. Moreover, the applicant’s account was coherent and plausible, and did not run counter to generally known country information (see further below).  Accordingly, the Tribunal extends the benefit of the doubt to the applicant where it is appropriate to do so and it accepts his core claims with respect to his cultural activities and related experiences in Turkey. 

22. Drawing from his written and oral testimony the following is a summary of the applicant’s evidence to the Tribunal:

    a.He was born in [Town 1] in [Province 1] of Turkey on [date of birth].  When pressed by the Tribunal as to his awareness of his Kurdish identity, the applicant stated that he knew he was Kurdish from birth as he was born in a Kurdish village.

    b.At the age of approximately 8 years, the applicant and his family moved to [Locality 1] in [Province 1].  The applicant states (uncorrected):

    After moving to [City 1], it seemed like I was living in a different country whose language was completely different than mine. Despite lack of my communication skills, I knew I had to survive in that new environment. The effects of my primary school teacher's discrimination while teaching Turkish sentence formation caused harm to my psychological development.

    c.When pressed by the Tribunal, the applicant stated that the school was composed of students from a variety of ethnic backgrounds, though “mostly Kurdish”.  He stated that his teacher was not of Kurdish ethnicity and that she used “racist expressions that affected [his] subconscious”.  When pressed to provide examples, the applicant stated that his teacher said words to the following effect:

    You are peasants – you came from villages – dirty Kurds – you are ignorant and come from ignorant backgrounds.

    d.The applicant stated that when he was in school the various ethnic groups were segregated from each other and he experienced discrimination.  He stated that:

    They didn’t want us [that is Kurdish students] to advance.

    e.As a result of this treatment, the applicant states, he developed an interest in the Kurdish language and culture, an interest he shared with other like-minded friends “during and after [his] high school years”.

    f.At the house of one such friend the applicant was introduced to a person who identified himself as the president of the Mesopotamia Cultural Association.  The encounter with this person deepened the applicant’s interest in the Kurdish language and culture and he developed the goal of speaking Kurdish “at [an] academic level”.

    g.The applicant states:

    Until that time I had no political opinion but still I faced a lot of discrimination in almost all public offices. I was planning to study Kurdish Linguistics at university and become a Kurdish language teacher. I believed that the Turkish Government would be able to resolve the Kurdish-Turkish conflict and eventually Kurdish could be taught at schools as an official language.

    h.The applicant’s involvement with cultural and educational activities at the Mesopotamia Cultural Association attracted interest from the police.  The applicant gave the following as an example being harassed, as he journeyed to attend the association:

    Two men, who later we realized were cops in disguise, were following us. We were stopped, questioned and also asked to provide our identification cards by these cops. We frankly answered all the questions they asked. The cops recorded all our identification details when we told them we were on our way to Mesopotamia Cultural Association. It was an awkward situation, eventually they let us go. When we arrived at the Cultural Association premises, I told [redacted] about what happened. I wondered why we were questioned, obviously they suspected the Association's activities might be terror related. I had never been involved in any terror related activity. At the Association… I borrowed the resources related to Kurdish language and other material that might be helpful in my research in history. On my way back home, the cops who took my ID details earlier, stopped me again and questioned in relation to my visit to the Association and their activities. I tried to convince them that it is not different from any other association. They searched the material I borrowed and took note of the titles of the books.

    i.The applicant stated that, after that encounter, he noticed police waiting outside his home “everyday”.  He stated that the police were questioning his family and friends, and that on one occasion his father was told by the police that:

    It won't do any good for your son if he continues his visits to the Mesopotamia Cultural Association. He will have to face the consequences.

    j.The applicant stated that he did not believe that he would attract such scrutiny simply from pursing cultural interests.

    k.The applicant described receiving a telephone call from a person claiming that he was calling from the [Locality 1] Police Station and that this person wanted him present at the Police Station within the next hour.  He states that he obeyed the request and that, upon attending the Police Station:

    This person took me to a room where I was questioned and verbally assaulted later on. I was accused of being a terrorist and detained there one night. Although I strongly refused their claims, a few officers had beaten me in the dark. I could not recognize their faces. When I woke up in the morning, I felt a lot of pain all over my body. There was a cut on my arm. I didn't know how I received it.

    l.When pressed, the applicant stated that the officer who called him had a “nationalist moustache” and that he was placed into a “questioning room” by this officer.  When further pressed, the applicant stated that he was accused of having contact with terrorists and that the police wanted names.  He states that he was “insulted” and “beaten by people”; more than one person and that he was “put on the ground” kicked and punched and hit with police batons.  When asked to describe the physical consequences of the beating, the applicant stated that he was beaten in such a fashion to ensure that “no traces were left – [they were] careful to leave no traces”.

    m.The applicant stated that such harassment became an “unbearable” feature of his life.  He stated that in response he decided to move to [City 2], following the example of his brother.  He stated, however, that not long after his arrival he received a telephone call from the [City 2] Police Station stating that he had to report there every fortnight.  He states that the [City 2] police alleged that he was involved in “illegal activities”.  The applicant decided, therefore, to return to his hometown.

    n.The applicant stated that he had resolved, by this stage, to travel on a student visa to Australia.  He states (uncorrected):

    I planned a last visit to the Mesopotamia Cultural Association to return the resources which I borrowed to search the history of Kurdish culture and Academic Kurdish Language. I was going to visit my friends and say 'goodbye' for the last time before I applied for a student visa to leave for Australia. I left the building, after 50 metres, I was stopped by an undercover police car but this time I didn't know where they were taking me. The destination was most probably the police station. I sat in the car blidfolded, kept silent although I was verbally abused all the way which I thought took about two hours. It was along ride so I thought we were going somewhere out of the city. After that two-hour drive, I overheard a conversation among the police officers who sounded exhausted. The conversation was that the place was convenient for that type of turture.

    I was naked and stretched between two trees. First, a taser gun, which Is used for crowds, was applied then hot pepper was spread on my genitals. What they demanded was the names of member of the terrorist group. I told them I wasn't involved in any of that but it didn't stop further slaps and kicks.

    After these insults and torture, I had collapsed. When I came, I was at the council's rubbish tip. I was naked and had pain all over my body. I found something to cover my genitals and walked to the city.

    o.In respect of his life in Australia since arriving onshore, the applicant stated that he had established contacts within the Kurdish community in Perth and regularly participated in cultural events, including the recent Newroz celebrations.

    p.The applicant stated that he is required to undertake compulsory military service in Turkey and that he conscientiously objects to such service on account of his Kurdish ethnicity.

    Mr [A]

23. The Tribunal received evidence from Mr [A], a Kurdish community leader and an officeholder of [Organisation 1].  In summary, Mr [A] gave evidence that:

    a.He first met the applicant six years ago.

    b.The applicant was a regular attendee and active participant at cultural events held by [Organisation 1].

    Future fear of persecution

1. It is submitted that the applicant faces a well-founded fear of persecution from the Turkish authorities on return to Turkey because of, inter alia, his:

   a.Kurdish ethnicity.

   b.Imputed political opinion (anti-Turkish government and pro-Kurdish separatism/ autonomy/independence) due to his Kurdish ethnicity.

   c.Status as a returnee/failed asylum seeker.

   d.Conscientious objection to military service in Turkey.

2. For the reasons that follow the Tribunal finds the applicant faces a well-founded fear of persecution on return to Turkey for the combined reasons of his actual and imputed (anti-government/pro-Kurdish) political opinion and Kurdish ethnicity.

3. The Tribunal has read and had regard to country information from a variety of sources about the worsening general security and human rights situation in Turkey following the failed 2016 coup attempt against the AKP government of Recep Tayyip Erdogan; the further erosion of rights for Kurds in Turkey linked to renewed fighting between the government and the PKK, and the state’s actions following the failed coup; and the restrictions and targeted harm (including arrest, torture, arbitrary detention and death) faced by Kurds in Turkey, particularly those who are politically active.

4. The Tribunal also notes reports about a crackdown on activists in Turkey during previous military incursion by the Turkish military in northern Syria in January 2018. This included reports about people being detained for what are perceived as pro-Kurdish, anti-government social media comments since the commencement of ‘Operation Peace Spring’.

5. The Tribunal accepts that the applicant has been active in pro-Kurdish cultural activities in Turkey and the risk, indeed the likelihood, that authorities there would perceive his activities as being anti-Turkish government and pro-Kurdish separatism. 

6. Given the passage of time since the applicant has been onshore, the Tribunal held an initial concern as to whether the applicant would be of any ongoing interest to the authorities on return to Turkey due to his past involvement with and support of various Kurdish cultural pursuits.  Weighted against this, however, the Tribunal also accepts that given the applicant’s keen sense of injustice with respect to Kurds’ rights and freedoms, his interest in the Kurdish culture and language and his own personal experiences as well as that of friends and relatives, the applicant would be active in some capacity to promote Kurds’ culture, rights and protections in Turkey on return.

7. Taking into account these considerations and findings about the applicant’s past experiences and profile the Tribunal has considered independent country information about the treatment of Kurds in Turkey in making its assessment about whether or not his fears in this respect are well founded as required by s.5J of the Act.

8. Country information indicates that there are about 15 million Kurds in Turkey, or 18 per cent of the population. Kurds are not fully able to exercise their linguistic, religious and cultural rights.[1] There has been a historical demand by the Kurdish people for minority rights and greater autonomy in the south-east. This has included a decade-long armed conflict between the state and the banned Kurdistan Workers’ Party (PKK).[2] A ceasefire deal was reached between the government and the imprisoned leader of the PKK, Abdullah Ocalan in 2013 and in February 2015 the government and the People’s Democratic Party (HDP) negotiated a 10-point peace plan. However both the peace plan and ceasefire agreement collapsed in July 2015, which resulted in an escalation of fighting.[3]

   [1] United States Department of State, Country Report on Human Rights Practices for 2017 Turkey, 20 April 2018, DFAT Country Information Report, Turkey, 9 October 2018

   [3] The Economist Intelligence Unit, ‘The Kurdish peace process begins to collapse’, 29 July 2015; DFAT Country Information Report, Turkey, 5 September 2016, p.12; European Commission, ‘Turkey 2018 Report’, 17 April 2018, p.17; and Amnesty International, ‘Displaced and Disposed: Sur Residents’ Right to Return Home’, December 2016, p.7.

9. On 15 July 2016 elements of the Turkish military attempted a coup d’état against the Turkish government. According to the most recent DFAT report, international and domestic observers have reported that the government’s response to both the resumption of conflict in the south-east between the government and the PKK, and to the July 2016 attempted coup, has significantly affected the rights and freedoms of Kurds.[4]

   [4] DFAT Country Information Report, Turkey, 9 October 2018 at 3.5–3.10.

10. In 2016, violence peaked in the Kurdish regions of south-eastern Turkey following the collapse of the ceasefire between the PKK and the government in 2015, after two years of relative peace.[5] Human Rights Watch has said that people continue to be arrested and are remanded to pre-trial custody on terrorism charges with at least 50,000 people remanded to pre-trial detention and many more prosecuted since the failed coup. Those prosecuted include journalists, civil servants, teachers and politicians as well as police officers and military personnel. Most were accused of being followers of the US-based cleric Fethullah Gulen. It has said that this includes human rights defenders such as those involved in Amnesty International. There has also been a crackdown on elected parliamentarians and officials from pro-Kurdish parties.[6]

    [5] European Commission, Turkey 2018 Report, 17 April 2018

    [6] Human Rights Watch, World Report 2018 Turkey, 2018, >

    Reports indicate that the government’s crackdown on the Kurdish political movement continues. Kurds and members of Kurdish opposition groups continue to be arrested and detained since the attempted coup in July 2016. In a Foreign Affairs article it was reported that of all people arrested in government operations between October 2016, at the start of the state of emergency and the end of February 2018, 31 per cent were allegedly associated with Kurdish or leftist groups.[7] In a Foreign Policy article it was reported that as of March 2018 almost 12,000 HDP-affiliated persons have been detained or jailed.[8] HDP co-leaders were detained on terrorist-related charges in November 2016, and the harassment and targeting of opposition groups including pro-Kurdish activists and members of the HDP around elections continue.[9]

    [7] Foreign Affairs, ‘The Remarkable Scale of Turkey’s “Global Purge”’, 29 January 2018

    [8] Foreign Policy, ‘The Making of a Kurdish Mandela’, 10 May 2018.

    [9] Al Monitor, ‘Ankara likely to use new charge to keep HDP co-chairs behind bars’, 23 September 2019; Voice of America ‘Kurdish Vote May have Major Impact on Turkey’s Polls’, 30 April 2018; OSCE Office for Democratic Institutions and Human Rights (ODIHR), ‘Republic of Turkey EARLY PRESIDENTIAL AND PARLIAMENTARY ELECTIONS 24 June 2018 ODIHR Election Observation Mission Final Report’, 21 September 2018; and Middle East Eye, ‘Fear and fatigue: Turkey’s election weighed down by silence’, 15 June 2018.

11. With respect to the situation for Kurds and pro-Kurdish groups in Turkey DFAT state that:

    International and domestic observers have reported the government’s response to both the resumption of conflict in the southeast between the government and the PKK, and the July 2016 attempted coup, have significantly affected the rights and freedoms of some Kurds. In particular, security operations since 2015 have resulted in significant hardship for local residents in the southeast. OHCHR reported in 2017 and 2018 extensive human rights violations arising from the conflict, including killings, torture, violence against women, excessive use of force, destruction of housing and cultural heritage, prevention of access to emergency medical care, safe water and livelihoods, and severe restrictions on freedom of expression (see relevant sections). These violations eased significantly through 2019 as the tempo of urban operations reduced, although rural anti-PKK operations and movement restrictions continued to affect Kurdish communities in the southeast disproportionately. In 2019, curfews were implemented less frequently and for shorter durations, and applied to a smaller number of villages than in previous years.

    The conflict has caused significant internal displacement: between July 2015 and July 2017, approximately 100,000 people lost their homes and up to 400,000 people reportedly moved to neighbouring suburbs, towns and villages, or to other regions within Turkey. In areas where 24-hour curfews were enforced, large numbers of people were forcibly displaced and prevented from returning to their homes until after the conflict had subsided. Many have reportedly not been able to return to their homes. DFAT assesses Kurdish civilians living in conflict-affected areas in the southeast during the peak of the conflict from 2015-2018 faced a high risk of violence and discrimination from both government forces and the PKK. In 2020, while such civilians may continue to face housing and other related problems, DFAT assesses the risk of violence and harassment is low.

    The government used state of emergency powers and subsequent carryover legislation following the 2016 attempted coup to target a wide range of Kurdish journalists, politicians and political activists, and civil society organisations accused of supporting the PKK (see also relevant sections). This has disproportionately impacted those in the southeast, and Kurds and Kurdish organisations in western Turkey do not face the same risk of conflict-related violence as those in the southeast. Many Kurds who are not politically active, as well as those who support the AKP, do not emphasise their Kurdish identity over their Turkish citizenship. Human rights observers report some Kurds in western Turkey are reluctant to disclose their Kurdish identity, including through speaking Kurdish in public, for fear of provoking a violent response.[10]

    [10] DFAT Country Information Report, Turkey, 10 September 2020 at 3.5–3.7.

12. DFAT asssess that:

    … pro-Kurdish political activists face a high risk of official discrimination in the form of arrest, monitoring, harassment and prosecution, which may be enhanced during election periods. They also face a moderate risk of physical violence from both security authorities and ultra-nationalist supporters. The level of risk is the same for high-level politicians and low-level activists, and applies nationwide.[11]

    [11] Ibid. at 3.45.

13. More broadly those who voice dissenting views on Kurdish issues have been arrested in Turkey. This includes journalists, human rights defenders and people posting comments on social media criticising the government’s military offensive in Afrin, Syria in 2018.[12] More recently Amnesty International reported on Turkey’s continuing crackdown on dissent in regard to its military operation – ‘Peace Spring’ – in north-east Syria.[13]

    [12] Amnesty International, ‘Weathering the Storm – Defending Human Rights in Turkey’s Climate of Fear’, 26 April 2018, p.8.

    [13] Amnesty International, ‘“We can’t complain” Turkey’s continuing crackdown on dissent over its military operation “Peace Spring” in northern east Syria’, November 2019

14. In such an environment and given such country information the Tribunal accepts that there is a real chance that the applicant would suffer serious harm (such as arrest and torture) if he returned to Turkey due to his (actual and/or imputed) political opinion, pro-Kurdish (perceived as anti-government) opinion and his Kurdish ethnicity. The Tribunal has accepted he has been threatened and harmed by the authorities and ultra-nationalists in the past because of his ethnicity and his cultural activities in Turkey. The country sources indicate that activists and participants face a real chance of serious harm for being involved in Kurdish cultural pursuits and/or political advocacy, or for speaking out against the government or for being perceived as such.

15. Based on the above factors cumulatively and taking into account the country information set out above – in particular DFAT’s assessment that pro-Kurdish activists (and those perceived as such) face a high risk of official discrimination, which may be enhanced during election periods, and also a moderate risk of physical violence from security authorities and ultra-nationalist supporters (and that the level of risk is the same for both high-level politicians and low-level activists, and applies nationwide)[14] – the Tribunal finds that there is a real chance the applicant will be subjected to ‘serious harm’ including loss of liberty and significant physical harassment and ill-treatment for the purposes of s.5J(4)(b) if returned to Turkey, now or in the foreseeable future. It finds that the harm will be directed at him for the essential and significant reasons of his imputed (anti-government/pro-Kurdish) political opinion and Kurdish ethnicity and involves systematic and discriminatory conduct for the purposes of s.5J(4).

    [14] DFAT Country Information Report, Turkey, 10 September 2020 at 3.45.

16. As the applicant’s fear includes fear of persecution at the hands of the state, the Tribunal is satisfied that the real chance of persecution relates to all areas of Turkey for the purposes of s.5J(1)(c) and that effective protection measures are not available to him for the purposes of s.5J(2). He cannot be required to modify, alter or conceal his political beliefs pursuant to s.5J(3).

17. It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore he meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.

18. Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.

    CONCLUSION

19. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

20. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Damian Creedon
    Member